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Former Member, New York State Committee of the Independence Party (73rd AD - Eastside Manhattan) and Former Member, New York City Independence Party Organizations - Manhattan Executive Committee and County Committee, representing the 73rd AD.

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Saturday, September 10, 2016

Appeals Court Overrules Federal Election Official on Proof of Citizenship for Voting

A top Appeals Court has overturned a Federal official’s ruling that effectively allowed three states to insist on Proof of Citizenship when their residents try to register to vote.

The official, U.S. Election Assistance Commission (EAC) Executive Director Brian Newby, agreed in January to change a National Mail-in Voter Registration form to allow Alabama, Georgia, and Kansas to implement State laws requiring Proof of Citizenship.

Several voting rights groups, including the Brennan Center, the Lawyers’ Committee for Civil Rights Under Law, and the American Civil Liberties Union, asked for a temporary restraining order in February to stop Newby’s decision from going into force, arguing that the new requirements would sow confusion and make it harder for some people to register and therefore make it more difficult for the groups to carry out their mission.

But U.S. District Court Judge Richard Leon declined their request, contending that the registration deadlines for the States’ Primary contests had already passed and that the plaintiffs hadn’t shown they would suffer “irreparable harm.” He affirmed that decision after a Court hearing in March, and the Advocacy groups appealed in July.

“Appellants have demonstrated irreparable harm, a likelihood of success on the merits, that the balance of equities tips in their favor, and that an injunction is in the public interest,” the U.S. Circuit Court of Appeals for the D.C. Circuit ruled late Friday, ordering the Three States to disregard Newby’s instructions.

The Court’s judgment was backed by D.C. Circuit Judges Judith Rogers, a Clinton appointee, and Stephen Williams, a Reagan appointee. They also also ordered the states to treat any applications filed since Jan. 29, when Newby sent his letter, as if no Proof of Citizenship was required.

Judge Raymond Randolph, a George H.W. Bush appointee, dissented. He argued that the plaintiffs hadn’t demonstrated irreparable harm and that it is States, not the Federal Government, that have the authority under the Constitution to set voting requirements for Federal elections.

The Court’s ruling applies only to the groups’ request for a Preliminary Injunction, however, and could be reversed after a full hearing. The States could also take their case to the full bench of the D.C. Circuit or to the Supreme Court.

However, with the shorthanded high court split 4-4 along ideological lines, the States’ chance of winning relief that way look slim. Five Justice would have to agree to put the D.C. Circuit ruling on hold.

“The upshot is that for this election, the federal form cannot include a state request for proof of citizenship documentation before voting,” Election Law expert Rick Hasen wrote in a blog post assessing the decision. “That is good news for voters, because it will be easier to register and vote in these states. And it won’t harm voters or the state, because the amount of non-citizen voting is quite small.”

The Election Commission itself has been effectively deadlocked on many issues in recent years, with two Republicans, one Democrat and one vacancy. Three votes are needed for the panel to act, but Newby acted without formal approval from the Commission.

"We are pleased with the swift decision of the D.C. Circuit that suspends Newby's Directive and look forward to presenting argument to the lower court that makes clear that Newby’s actions fall outside his scope of authority and run contrary to the EAC’s rules and policy," Lawyers' Committee President and Executive Director Kristen Clarke said in a statement.

The D.C. Circuit panel heard arguments on the case Thursday morning and moved unusually swiftly in ruling on the case Friday without issuing a formal opinion.

I think it is time to readdress this issue. Should we stay reactive or proactive when deciding if someone can become a voter?

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